Committees advance TBA bills on shareholder derivatives, condominiums, lien law and family law issues

The House Judiciary Committee's Civil Practice Subcommittee today cleared for full committee consideration the Tennessee Bar Association bill, as amended, on expenses in shareholder derivative actions (HB3866/SB3982), sponsored by Rep. Doug Overbey, R-Maryville and Sen. Joe Haynes, D-Nashville. The Senate Commerce, Labor and Agriculture Committee also recommended passage of the Tennessee Condominium Act of 2008 (SB2935/HB2752), sponsored by Sen. Paul Stanley, R-Memphis, and Rep. Kent Coleman, D-Murfreesboro, after adopting a single comprehensive amendment. The TBA-fostered bill is the first complete rewrite of the 1963 Horizontal Property law.

In the Senate Judiciary Committee, members approved the bill (SB2950/HB3102), sponsored by Sen. Joe Haynes, D-Nashville and Rep. Charles Curtiss, D-Sparta, brought by the TBA, making technical corrections to the Construction Lien Law that was adopted last year. The committee also recommended adoption of the family law housekeeping bill (SB2910/HB3044), sponsored by Sen. Doug Jackson, D-Dickson, and Rep. Janis Baird Sontany, D-Nashville, which was drafted by the TBA Family Law Section.

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This appeal arises from a divorce action. Husband appeals the trial court's award of alimony in futuro in the amount of $1600 per month to Wife. Wife asserts this appeal should be dismissed for unclean hands. She further asserts the trial court erred by finding the parties stipulated as to grounds
for divorce, in setting alimony at $1600 per month, by not ordering an automatic increase in alimony upon emancipation of the children, by failing to award her all of her attorney's fees, and by ordering Husband to name Wife and the children as beneficiaries of his life insurance policy. We affirm.

Elbert Jefferson, Jr., Memphis City Attorney, and J. Michael Fletcher, Deputy City Attorney, for the appellant, City of Memphis.

J. Michael Murray, Cleveland, Tennessee, and Rex Brasher, Memphis Tennessee, for the appellee, Manhattan, Inc., d/b/a New York New York.

Judge: KIRBY

This is a petition for a writ of mandamus. The plaintiff purchased a vacant nightclub and sought to reopen it as a topless club. To this end, the plaintiff nightclub owner filed an application for a beer permit and a compensated dance permit from the city beer board, and for a certificate of occupancy with the local construction code enforcement office. After protracted litigation, the nightclub owner obtained the necessary beer and compensated dance permits. Subsequently, the construction code office issued a certificate of occupancy to the nightclub owner, but later sought to restrict it to prohibit sexually-oriented entertainment. This was unsuccessful, so the construction code enforcement office revoked the certificate. The nightclub owner then filed the instant petition for a writ of mandamus against the county and the construction code enforcement office, asking the trial court to compel the construction code office to issue an unrestricted certificate of occupancy. The defendants argued, inter alia, that the plaintiff's intended use for adult entertainment was not "grandfathered" because the plaintiff had abandoned the nightclub while seeking the required permits. After a bench trial, the trial court held in favor of the nightclub owner and granted the writ of mandamus. The defendants now appeal. We affirm, finding that the trial court did not err in finding that the nightclub owner's business use was
lawful, and that the nightclub owner did not abandon the property during the time it was involved in litigation over the beer permit.

This is an appeal involving a post-divorce award of alimony in futuro. The court awarded the wife a divorce from the husband after 36 years of marriage. The husband has a bachelor's and master's degree in electrical engineering. The wife does not have a college degree and makes a living as a hair stylist. In the final divorce decree, the court awarded the wife temporary alimony in the amount of $3,500 per month. The husband sought to reduce his alimony obligation. At the hearing, the court found a material change in circumstances and reduced the husband's alimony obligation from $3,500 a month to $2,000 a month. The court ordered, however, that this $2,000 a month award was in futuro until the wife's death or remarriage. The husband appeals, and we affirm and remand for a determination of an appropriate award of the wife's attorney's fees.

The pro se petitioner, Jerry Dickerson, appeals as of right the Johnson County Criminal Court's summary dismissal of his petition for a writ of habeas corpus. The petition and subsequent amendments make various allegations regarding the sufficiency of the evidence to support his convictions, the trial court's jury instructions, the state's failure to disclose exculpatory evidence, defects in the indictment, and errors in the convicting court's evidentiary rulings. The habeas court summarily dismissed the petition for failure to state a cognizable claim. Following our review, we
affirm the judgment of the habeas court.

A Blount County jury convicted the Petitioner, Asata Lowe, of two counts of first degree murder and one count of especially aggravated robbery, and he was sentenced to two concurrent life sentences without the possibility of parole. This Court affirmed his convictions and sentences on appeal. The Petitioner filed a petition for post-conviction relief claiming he was entitled to relief because he discovered new exculpatory evidence, the State failed to secure and disclose evidence favorable to
him, and he did not receive the effective assistance of counsel. The post-conviction court denied the petition for relief. On appeal, the Petitioner raises the same claims, and, additionally, he asserts that the post-conviction court erred in refusing to allow him to redraft an amended petition in accordance with Holton v. State, 201 S.W.3d 626 (Tenn. 2006), and in failing to appoint expert witnesses during the post-conviction proceedings. The Petitioner also asserts that the cumulative effect of these errors, along with the harmless errors found in this Court's opinion on direct appeal, constitute a deprivation of due process. After a thorough review of the record of proceedings, including the direct appeal, we conclude the post-conviction court did not err in denying the petition for post-conviction relief. We, therefore, affirm the judgment of the post-conviction court.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Elizabeth Rice, District Attorney General, and Joe Van Dyke, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

On August 10, 2006, Petitioner, Xavier C. Parks, pleaded guilty in Hardeman County to a single count of aggravated burglary and he was sentenced to six years of incarceration as a Range I Standard Offender. Petitioner did not appeal the sentence. On November 6, 2006, Petitioner filed a pro se post-conviction petition. He used a form post-conviction petition provided by the State of Tennessee and simply checked the boxes beside two common grounds alleged in post- conviction proceedings: (1) "conviction was based on unlawfully induced guilty plea or guilty plea involuntarily entered without understanding of the nature and consequences of the plea;" and (9) "denial of effective assistance of counsel." The petition contained no facts which would support these alleged grounds for collateral relief, and the post-conviction judge dismissed the petition for that reason. We are constrained to agree with the post-conviction court and, therefore, affirm the dismissal.

The Commission will meet again tomorrow (Wednesday) to consider candidates for 20th Judicial District Circuit Court seat that opened up with the retirement of Judge Walter C. Kurtz.

Federal judges get new, uniform rules for behavior

New rules adopted today by the Judicial Conference of the United States for the first time provide uniform national standards for dealing with federal judges whose health or behavior may interfere with their ability to perform their jobs. The rules, unlike prior standards, are binding and will "dispense with a hodgepodge of practices the judicial circuits have developed over time," Legal Times says.

U.S. Attorney David Kustoff announced this morning that he is resigning his post as West Tennessee's top federal prosecutor. Kustoff, who was sworn in on March 27, 2006, said in a press release that his resignation is effective May 16. After his resignation, he will rejoin his prior law firm, Kustoff & Strickland PLLC.

Knoxville lawyer Howard H. Vogel was nominated to serve as a member of the American Bar Association's Board of Governors during the 2008 ABA Midyear Meeting in Los Angeles last month. The election will be held in August by the policy-making ABA House of Delegates when it meets at the 2008 ABA Annual Meeting in New York City. If elected, Vogel will serve a three-year term for District Six, representing Louisiana, Tennessee and Georgia, and will be one of 40 representatives in charge of administration and management of the association.

Ashcroft questioned about no-bid contract

"There is not a conflict, there is not an appearance of a conflict," former Attorney General John Ashcroft said at a hearing of a House Judiciary subcommittee called to explore the circumstances of
a no-bid private contract awarded to him by the Justice Department last year. "You don't believe that it may be a conflict of interest in a former employee hiring the former boss, or suggesting that he be hired, for a very lucrative contract?" Rep. Linda T. Sanchez of California asked.

Special Judge Jon Kerry Blackwood told a 57-year-old Maryville man that he can be represented in court by a lawyer or by himself, but not by God. "Yahweh is my counsel," William A. Roseburgh told the judge Monday afternoon. "I am not representing myself. He is my counsel."
"In this court, he cannot," Blackwood responded. "You can have an attorney or represent yourself." Trial for Roseburgh and his wife, on a series of misdemeanor charges, was set for Aug. 7.

If you want to attend the
6th Circuit Judicial Conference, May 7-10, in Chattanooga, you must be admitted to practice law in a 6th Circuit federal court.
In order to be admitted in time, the deadline to file
an application to practice in federal court is March 13. The admissions
ceremony and CLE will be April 24, and will then allow you to
attend the Judicial Conference in May.

Lawyers from across Tennessee will be in the Smoky Mountains this summer as the Tennessee Bar Association convenes its annual convention in Gatlinburg June 11-14. Register now to take part in the Meeting in the Mountains -- a joint event with the Tennessee Judicial Conference, the Tennessee Attorneys for Justice and the Tennessee Lawyers Association for Women. You don't want to miss it.

The Tennessee Supreme Court on March 5 temporarily suspended the law license of Nashville lawyer Newton S. Holiday, pursuant to Section 4.3 of Tennessee Supreme Court Rule 9. The Board of Professional Responsibility petitioned the court to temporarily suspend Holiday's law licenses because of his failure to respond to a complaint of ethical misconduct.

Nashville lawyer David H. Hornik received a public censure from the Board of Professional Responsibility on Feb. 19. Hornik represented a client in a worker's compensation case that was dismissed for Hornik's failure to prosecute. He failed to respond to the board's and his client's requests for information. Hornik's neglect and failure to communicate with his client and the Board violates Rules 1.3; 1.4; 8.1(b) and 8.4 of the Tennessee Rules of Professional Conduct.

TBA members are offered a rental car discount through Avis. Enroll in the Avis Preferred Service at www.avisawards.com to bypass the rental counter and go directly to your car for a faster, easier rental experience. Enter code AWD# A570100.